Beveridge & Diamond

EPA Revisions to Definition of “Solid Waste” Change the Regulatory Landscape for Hazardous Recyclable Materials

Authors: Aaron Goldberg and Don Patterson
Beveridge & Diamond, P.C., December 19, 2014

On December 10, 2014, the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) signed a final rule revising the definition of “solid waste” for purposes of the federal hazardous waste regulatory program under the Resource Conservation and Recovery Act (“RCRA”).  This definition is a key element of the RCRA regulations, inasmuch as only solid wastes can be subjected to regulation as hazardous wastes. 

EPA originally proposed this latest round of changes in 2011, in response to a court challenge that alleged that the last major set of changes, in 2008, inappropriately excluded certain recyclable materials from RCRA regulation, thereby posing risks to the environment and human health, with disproportionate impacts on minority and low-income populations. See 73 Fed. Reg. 64,668 (October 30, 2008) (“2008 DSW Rule”).  The new final rule (“2014 DSW Rule”) significantly cuts back on the 2008 DSW Rule, and also imposes new requirements on recyclable materials that were excluded or exempted from regulation under the pre-2008 RCRA rules.  The 2014 DSW Rule also amends the Agency’s “legitimacy criteria” for determining when recycling is legitimate, rather than a sham, and establishes one new regulatory exclusion for certain solvent recycling operations, referred to as “remanufacturing.” 

The 2014 DSW Rule makes the RCRA requirements for recyclable materials more stringent in some ways, and less stringent in others.  Although the formally effective date for the rule is 180 days after publication in the Federal Register (expected in early January 2015), in virtually all States, the rule will not be effective unless and until adopted by the State.  The more stringent portions of the rule (e.g., the new legitimacy criteria) will have to be adopted within 1-3 years, but the less stringent portions of the rule (e.g., the new remanufacturing exclusion) are not required to be adopted.  

A detailed summary and analysis of the 2014 Rule is available here. For more information on the rule, please contact Aaron Goldberg or Don Patterson.

Beveridge & Diamond assists clients in a wide range of industrial sectors with solid and hazardous waste regulatory issues under RCRA, its state counterparts, international treaties, and the laws and regulations of countries around the world.  We have been lead counsel in many of the seminal cases challenging prior iterations of the RCRA definition of solid waste, routinely advise clients on when specific recyclable materials may be classified as wastes, and defend companies in related enforcement actions.